UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Item 1.01 Entry into a Material Definitive Agreement.
Issuance and Sale of 26.5% Convertible Senior PIK Notes due 2026
On January 18, 2023, Eos Energy Enterprises, Inc. (the “Company”) entered into an investment agreement (the “Investment Agreement”) with Great American Insurance Company, Ardsley Partners Renewable Energy, LP, CCI SPV III, LP, Denman Street LLC, John B. Berding Irrevocable Children’s Trust, John B. Berding, and AE Convert, LLC, a Delaware limited liability company managed by Russell Stidolph, a director of the Company (together, the “Purchasers”) relating to the issuance and sale to the Purchasers of $13,750,000 in aggregate principal amount of the Company’s 26.5% Convertible Senior PIK Notes due 2026 (the “Notes”). The transactions contemplated by the Investment Agreement (the “Transaction”) closed on January 18, 2023 (the date on which the closing occurred, the “Closing”).
Issuance of Convertible Notes
The Notes are governed by a form of indenture (the “Indenture”) incorporated by reference into the Notes. The Notes will bear interest at a rate of 26.5% per annum, which interest shall be entirely paid-in-kind. All interest payments on the Notes shall be made through an increase in the principal amount of the outstanding Notes or through the issuance of additional Notes (such interest is referred to herein as “PIK Interest”). Interest on the Notes is payable semi-annually in arrears on June 30 and December 30, commencing on June 30, 2023. It is expected that the Notes will mature on June 30, 2026, subject to earlier conversion, redemption or repurchase.
The Notes are convertible at the option of the holder at any time until the business day prior to the maturity date, including in connection with a redemption by the Company. The Notes will be convertible into shares of the Company’s common stock, par value $0.0001 per share, based on an initial conversion rate of 598.824 shares of the Company’s common stock per $1,000 principal amount of the Notes (which is equal to an initial conversion price of approximately $1.67 per share), in each case subject to customary anti-dilution and other adjustments (as described in the Indenture).
On or after June 30, 2024, provided that the Company has obtained stockholder approval pursuant to Nasdaq Marketplace Rule 5635(d), the Notes will be redeemable by the Company in the event that the closing sale price of the Company’s common stock has been at least 130% of the conversion price then in effect for at least 20 trading days (whether or not consecutive) during any 30 consecutive trading day period ending on, and including, the trading day immediately preceding the date on which the Company provides the redemption notice at a redemption price equal to the then current principal amount of such Notes (inclusive of all PIK Interest), plus the aggregate amount of all interest payments on such Notes that the holders of the Notes to be redeemed would have been entitled to receive had the Notes remained outstanding to the maturity date.
With certain exceptions, upon the occurrence of certain fundamental changes described in the Indenture (each, a “Fundamental Change”), the holders of the Notes may require that the Company repurchase all or part of the principal amount of the Notes at a purchase price of 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but excluding, the Fundamental Change repurchase date.
The Indenture includes customary “events of default,” which may result in the acceleration of the maturity of the Notes under the Indenture. The Indenture will also include customary covenants for convertible notes of this type.
The Notes are senior unsecured obligations of the Company and rank equal in right of payment to all senior unsecured indebtedness of the Company, and will rank senior in right of payment to any indebtedness that is contractually subordinated to the Notes.
Standstill Obligations
Pursuant to the Investment Agreement, the Purchasers have agreed, subject to certain exceptions, that during the period commencing on the Closing and ending on the six (6) month anniversary of the Closing (the “Standstill Period”), each individual Purchaser will not, among other things: (i) acquire any securities of the Company if, immediately after such acquisition, such Purchaser would collectively own in the aggregate more than 20.0% of the then outstanding voting securities of the Company, (ii) propose or seek to effect any tender or exchange offer, merger or other business combination involving the Company or its securities, or make any public statement with respect to such transaction, (iii) make, or in any way participate in any “proxy contest” or other solicitation of proxies, (iv) seek the appointment of any director or (v) call or seek to call any meeting of stockholders or other referendum or consent solicitation.
Transfer and Conversion Restrictions; Registration Rights; Participation Rights
The Investment Agreement restricts the Purchasers’ ability to transfer or hedge the Notes or the Company’s common stock, subject to certain exceptions specified in the Investment Agreement. In particular, prior to the six-month anniversary of the Closing, the Purchasers will be restricted from transferring or entering into an agreement that transfers the economic consequences of ownership of the Notes or shares. These restrictions do not apply to, among others, transfers to affiliates.
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Subject to certain limitations, the Investment Agreement provides the Purchasers with certain registration rights for the Notes and shares of the Company’s common stock issuable upon conversion of the Notes.
The foregoing summaries of the Indenture, the Notes and the Investment Agreement do not purport to be complete and are subject to, and qualified in their entirety by the full text of the forms of Note and Indenture, which are attached hereto as Exhibit 4.1 and incorporated herein by reference, and the Investment Agreement, which is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Limited Consent Agreement
On January 18, 2023, the Company entered into a limited consent agreement dated as of January 17, 2023 (the “Limited Consent”) with ACP Post Oak Credit I LLC, as administrative agent and acting on behalf of itself and the other Lenders under the Senior Secured Term Loan Credit Agreement dated as of July 29, 2022 (the “Credit Agreement”). Pursuant to the Limited Consent, the Lenders have consented to (i) the Company incurring indebtedness consisting of unsecured convertible promissory notes (“New Convertible Notes”) that (A) are on terms and conditions acceptable to the administrative agent, (B) are convertible solely for certain preferred or common stock (subject to certain exceptions) of the Company (“Eos Equity Interests”), (C) have an aggregate principal amount not to exceed $75,000,000 plus any increase thereof constituting the addition of interest “paid in kind,” and (D) do not provide for the cash payment of interest, fees, premiums or other similar amounts to or for the benefit of the holders thereof, (ii) the New Convertible Notes constituting “Convertible Notes” under the Credit Agreement and related documents, (iii) the waiver of the requirement under the Credit Agreement to prepay the loans under the Credit Agreement with the proceeds of the New Convertible Notes or any proceeds received in respect of any issuance or sale of Eos Equity Interests pursuant to the New Convertible Notes and (iv) the waiver of the requirement under the Credit Agreement to prepay the loans under the Credit Agreement with the proceeds of the next issuance of warrants in respect of Eos Equity Interests after the date of this the Limited Consent, including any proceeds received in respect of any issuance or sale of Eos Equity Interests upon the exercise of such warrants, which warrants shall be on terms and conditions acceptable to the administrative agent.
The foregoing summary of the Limited Consent does not purport to be complete and is subject to, and qualified in its entirety by the full text of the Limited Consent which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.
The information related to the issuance of the Notes contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
On January 18, 2023, the Company entered into the Investment Agreement, pursuant to which it agreed to sell $13,750,000 in aggregate principal amount of the Notes to the Purchasers for cash in a private placement pursuant to the exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). The Company offered and sold the Notes to the Purchasers in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated thereunder without the involvement of any underwriter. The Company relied on this exemption from registration based in part on representations made by the Purchasers in the Investment Agreement. The Notes are convertible as set forth above, and any shares of the Company’s common stock issued upon conversion of the Notes will be issued in reliance on Section 3(a)(9) of the Securities Act.
The information related to the issuance of the Notes and the underlying shares of the Company’s common stock contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 8.01 Other Events.
On January 19, 2023, the Company issued a press release announcing the Transaction. A copy of the press release is filed as Exhibit 99.1 and incorporated herein by reference.
Item 9.01 Financial Statement and Exhibits.
(d) Exhibits
| Exhibit Number | Description of Document | |
| 4.1 | Form of Note (including Indenture incorporated by reference therein) | |
| 10.1* | Investment Agreement, dated January 18, 2023, by and among Eos Energy Enterprises, LLC and the purchasers listed therein | |
| 10.2 | Limited Consent Agreement, dated as of January 17, 2023, among Eos Energy Enterprises, LLC, the lenders party thereto, and ACP Post Oak Credit I LLC, as administrative agent. | |
| 99.1 | Press release dated January 19, 2023 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
| * | Certain schedules and exhibits to this agreement have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule will be furnished supplementally to the SEC or its staff upon request. |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| EOS ENERGY ENTERPRISES, INC. | |||
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Dated: January 19, 2023 |
By: | /s/ Randall Gonzales | |
| Name: | Randall Gonzales | ||
| Title: | Chief Financial Officer | ||
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